NY State Bar Ethics Committee Defends Dual Immigration/Family Court Representation in a Victory for Immigrant Children

On behalf of Youman, Madeo & Fasano, LLP on Monday, September 21, 2015.

In securing an important, favorable opinion from the New York State Bar Association Committee on Professional Ethics, YMF recently made a significant stride in the battle for immigrants' rights which will offer added protection to many immigrant children facing deportation and seeking to obtain legal residency in the U.S.

By way of background, Congress enacted in 1990 what has come to be known in the immigration law community as one of the most important pathways to legal status for immigrant children: Special Immigrant Juvenile (SIJ) Status. SIJ is available to children who have been abused, neglected, or abandoned by at least one parent.

SIJ is typically pursued in family court and has two prongs: guardianship proceedings and "Special Findings" proceedings. Guardianship proceedings are pursued for a grant of guardianship to the proposed guardian, who can be one of the child's parents, a different adult relative, or a different adult entirely. Guardianship is not a direct requirement for SIJ; it is essentially nothing more than a requisite to Special Findings, which is an explicit requirement for SIJ. SIJ Special Findings entails a determination by the state court that the child: is dependent on a U.S. state juvenile court, cannot be reunited with one or both of his or her parents due to abuse, abandonment, or neglect, and that it is not in the best interests of the child to be returned to her country of citizenship. When the SIJ Special Findings Order is obtained, that can then be used to apply for a green card before USCIS via a Form I-360 petition and a Form I-485 application. The I-360 must be filed with the Special Findings Order prior to the child's twenty-first birthday.

For children who are facing deportation in immigration court and are not living with both parents, SIJ tends to be the path of greatest gain and least resistance if the child can get through the family court process. Unfortunately, our recent experience has revealed that that is an increasingly big 'if', depending on which family court and which judge the child and guardian chance to find themselves before. There has been an increasing hostility towards SIJ cases from some family court judges who evidently view these cases as an opportunity to engage in negative judicial activism and express their political views on immigration. The reverberations of this hostile climate have extended as far as Washington, where some politicians, e.g., Bob Goodlatte (R-VA), have seized upon the ensuing controversy in New York and the politically-loaded atmosphere across the nation to cast doubt on the SIJ program broadly. The reality for immigration lawyers on the ground entails a trend of increasing opposition to SIJ cases from some judges who will reportedly try to use any tool available to obstruct these cases.

One such tool might be the perceived conflict of interests presented by a single attorney or law firm representing a child in immigration court and her proposed guardian in family court, which is one objection we have heard in some courts. To be fair, it may be the case that a judge is genuinely concerned about a potential conflict of interests for valid reasons, and we are not drawing any conclusions about any particular judge herein. However benign or pernicious the motivation, a perceived conflict of interests can be detrimental to a case because if a judge decides to dismiss a petition on those grounds, the issue may have to be resolved through a lengthy, unpredictable appeals process or else the client may have to hire an additional attorney and start the family court process anew.

We've seen this potential conflict of interests question raised in family court with increasing frequency over the past year. Consequently, YMF endeavored to have the issue resolved by the New York State Bar Association Ethics Committee by proactively submitting an inquiry on that question, which was prepared by former YMF attorney Stephen Roth and submitted earlier this year.

The Ethics Committee recently rendered a detailed opinion dated August 19, 2015 in response to our inquiry. In its opinion, the Ethics Committee found that an attorney may simultaneously represent a child in immigration proceedings and her proposed guardian in family court provided that the lawyer complies with Rule 1.7(b), i.e., the lawyer reasonably believes that she can competently and diligently represent each affected client; the representation is not prohibited by law; the representation does not involve the claim of one client against another; and each client gives written consent.

This was not a light opinion. The Ethics Committee took care to address all potential objections and concerns in great detail and consistently found in our favor. While the Ethics Committee was careful to contemplate every possible scenario so as not to dismiss outright that "differing interests" as defined in Rule 1.0(f) might be in play, the opinion acknowledged that the affected cases typically deal with neatly aligned interests. The opinion further held in no uncertain terms that any potential concerns are obviated by compliance with Rule 1.7(b).

The effect of this opinion is that no NY Family Court can now defensibly obstruct an SIJ case on the basis of this perceived conflict of interests. While the opinion's direct legal reach is confined to New York, it should be persuasive in any jurisdiction in the country, as SIJ is codified in federal law and while state juvenile courts certainly vary, the underlying legal requirements for SIJ purposes are singular. It is now YMF policy to bring a copy of this opinion to every family court hearing, and it has emboldened our zealous pursuit of SIJ for all eligible clients. Indeed, every lawyer providing simultaneous representation in both immigration and family courts should be armed with a copy of this powerful opinion.

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The law firm of Youman, Madeo & Fasano, LLP, serves the immigrant community surrounding New York City, including the boroughs of Manhattan, Queens, Brooklyn, Bronx and Staten Island. We serve clients on Long Island and in the New Jersey cities of in Patchogue, Union City, Hoboken, Jersey City and North Bergen. We draw inquiries from people living and working in New York County, Bronx County, Queens County, Kings County, Richmond County, Nassau County and Suffolk County; and in New Jersey's Hudson County, Essex County and Bergen.